The opinion of the court was delivered by: Gerard E. Lynch, District Judge
On September 26, 2002, Plaintiff Wells Fargo Bank Northwest, N.A., was granted partial summary judgment on the issue of liability in the above-captioned action for breach of contract. The counterclaims and third-party complaint of Defendant TACA International Airlines, S.A., [ Page 2]
were dismissed in the same Order. On May 20, 2003, the Court disposed of the remaining issue of damages by granting Wells Fargo's motion for Summary Judgment on Damages. The judgments entered following each of these Orders — the Partial Judgment of September 30, 2002 and the Amended Judgment of June 4, 2003 — together constitute the final judgment in this case.
TACA now moves for leave to amend its pleadings so as to assert defenses and/or counterclaims under U.C.C. Article 2A, and, "if the Court determines that a final judgment . . . has already been entered in this case," for relief from that judgment pursuant to Rules 59 and 60(b) of the Federal Rules of Civil Procedure. In the alternative, it asks for entry of final judgment. The motions will be denied.
Since the two judgments entered in this case together dispose of all claims by all parties, they constitute a final judgment. TACA claims that it "has not been able to locate a document satisfying" what it believes to the requirement of "a separate document specifically adjudicating all the claims of all of the parties to this lawsuit." (D. Mem. 9-10, 15.) However, there is no such requirement; indeed, the Second Circuit has explained that there is "no requirement in the Federal Rules of Civil Procedure that the document that constitutes the final judgment in a case be comprehensive." Ellender v. Schweiker, 781 F.2d 314, 318 (2d Cir. 1986).
Final judgment having been entered, the court can grant TACA's motion for leave to amend its pleadings only if it first grants its motion for relief from the final judgment. National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244-45 (2d Cir. 1991). The only ground asserted by TACA for such relief is the fact that its former counsel failed to assert certain defenses and counterclaims it believes are available to it under Article 2A of the Uniform [ Page 3]
TACA's failure to argue claims or defenses under Article 2A is not a valid basis for relief from judgment under Rule 60(b). TACA attempts to frame the issue as one of "excusable neglect," Rule 60(b)(1), by its former attorneys citing the fact that Article 2A is "novel" because did not become effective in New York until mid-1995. (D. Mem. 9.) However, TACA filed its answer in this case on December 19, 2001, fully five and one-half years after Article 2A allegedly became the applicable law. Five-year-old law is not "novel," and failure of TACA's attorneys to apply it is not "excusable neglect." Thus the principle that, in the context of Rule 60(b), "clients must be held accountable for the actions and omissions of their attorneys" applies. Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 396 (1993).
Similarly, relief pursuant to Rule 59(e) would be inappropriate. Unquestionably, TACA wishes to relitigate this case under a new theory, and the Second Circuit has held that "It is well-settled that Rule 59 is not a vehicle for . . . presenting the case under new theories." Sequa Corp. v. GBJ Corp., 156 F.3d 136, 144 (2d Cir. 1998). In response, TACA cites a sixty-six-year-old case from another circuit, Sulbacher v. Continental Casualty Co., 88 F.2d 122, 124 (8th Cir. 1937), in which a new trial was granted because a two-month old controlling case had been overlooked in interpreting a contract provision. The court explicitly concluded that the oversight was the result of "mistake, oversight, or excusable neglect," the same standard applicable in Rule 60(b) motions. Another case cited by defendant, also involving a "controlling decision not called to the court's attention," was similarly decided under the excusable neglect standard. Nebel v. Avichal Enterprises, Inc., 704 F. Supp. 570, 574-75 (D.N.J. 1989). As noted above, there was no [ Page 4]
excusable neglect here, where the claimed oversight involved a complex statute covering an entire area of law that had been on the books for more than five years when TACA responded to the complaint.
For these reasons, TACA's motion for relief from final judgment in this case is denied, and so, therefore, is its request for leave to file an amended answer and counterclaim. Since the judgments entered to date constitute a final judgment, TACA's alternative request for entry of a final judgment is denied as moot.
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